https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9808

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E248 OF 2025** **BRIAN OMBUYA OTOLO………………………………………………………APPELLANT** **-VERSUS-** **JULIUS OKONJI TUBA……………………………………...………………..RESPONDENT** **JUDGMENT** ***(Being an Appeal from the judgment and decree of the Honourable S.N. Mutava (Adjudicator) delivered on the 27th of October, 2025 in KISUMU SCCC NO. E234 OF 2025; Brian Ombuya Otolo vs. Julius Okonji Tuba)*** 1. **Introduction/ brief facts** 2. This is an Appeal arising from the Judgment of the Honourable S.N Mutava (Adjudicator) delivered on the 27th of October, 2025 in KISUMU SCCC NO. E234 OF 2025, between Brian Ombuya Otolo vs. Julius Okonji Tuba. 3. Vide a Statement of Claim dated 17th March 2025, the Appellant instituted a personal injury claim against the Respondent seeking monetary compensation in the form of General Damages of Kshs. 1,000,000/= for pain and suffering and special damages of Kshs. 10,550/=, costs of the claim and any other appropriate relief the court may deem fit and just to grant. 4. In the statement of claim, the Appellant stated that the alleged road traffic accident occurred on or about 16th November, 2024 at about 7:00 p.m. or thereabout when the Respondent’s duly authorized driver, servant, agent and/or employee, driving Motor Vehicle KCD 049Q make Mitsubishi Lorry/ Truck was driven carelessly and negligently and was parked/stopped the Respondent’s foresaid motor vehicle on the roadside of Kakamega- Kisumu Road at the flyover without any road signs causing the claimant who was lawfully and carefully riding his Motorcycle Registration Number KMDW 599Q make boxer to collide into the rear of the Respondent’s foresaid stationary Motor Vehicle as a result of which the Appellant sustained injuries, damage and loss. 5. The Respondent, filed a Response to the Statement of Claim wherein he denied the allegations in toto, attributing the occurrence of the accident to the Claimant. 6. Upon full hearing, the trial court rendered its decision on 27th October 2025, finding that the Respondent was wholly liable for the accident and thereby awarding the Appellant general damages in the sum of Kshs. 400,000/=. The Appellant, being dissatisfied with the said judgment appealed to this court and the main issues that arose from the Record of Appeal are:- 7. Whether the Trial Adjudicators Assessment and award of general damages of Kshs. 400,000/= was in accordance with the law vis-à-vis the injuries sustained and; 8. Whether the Trial Adjudicator considered all the documentary medical evidence adduced by the Appellant in reaching her finding and award of general damages of Kshs. 400,000/= 9. On Appeal, both parties filed their submissions and it is therefore pertinent for this court to analyze the same before raising the issues for determination. This court also bears in mind that this is the first appellate court and as held in the matter of **Okeno v R (1972) EA 32, the Court of Appeal for East Africa , *the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.*** 1. **Submissions by the Parties** **Appellant’s Submissions** 1. The Appellant submitted that the award of General Damages in the sum of Kshs. 400,000/= was inordinately low considering the nature, extent, and degree of the injuries sustained. The Appellant contended that the award was inconsistent with recent judicial authorities as well as the evidence that had been placed before the trial court during the hearing. Further, the Appellant argued that the trial court failed to adequately consider and/or appreciate the Appellant’s written submissions together with the authorities cited, thereby arriving at a flawed and erroneous judgment. 2. The Appellant further addressed this Honourable Court on the issue of jurisdiction and the duty of a first appellate court, while relying on the decisions in Selle vs. Associated Motor Boat Co. (1968) EA 123 and Mbogo vs. Shah (1968) EA 93. 3. The Appellant also made submissions regarding the particulars of injuries sustained as a result of the accident, placing particular emphasis on the contention that the learned trial magistrate omitted and/or overlooked what the Appellant considered to be the most severe injury sustained, namely the comminuted fracture of the left knee (patella) bone. 4. The Appellant submitted that, before the lower court, he had argued that the maximum award of General Damages awardable by the Small Claims Court is Kshs. 1,000,000/=. In support of this position, reliance was placed on the case of Johnson & Another vs. Kirwa (Civil Appeal 52 of 2019) [2023] KEHC 18138 (KLR) (30 January 2023) (Judgment). The Appellant further contended that the trial court failed to provide reasons for departing from and/or differing with the proposal made by the Appellant. The Appellant additionally relied on the decisions in Kimani vs. Meresey (Civil Appeal E087 of 2022) [2025] KEHC 4819 (KLR) (10 March 2025) (Judgment) and SBI International Holdings vs. Oliech (Civil Appeal E086 of 2022) [2025] KEHC 6914 (KLR) (23 January 2023) (Judgment). **Respondents submissions** 1. The Respondent, raised two issues that ought to be determined at the appeal level; whether the award of Kshs. 400,000/= was adequate compensation for the injuries sustained and who ultimately bears the costs of the appeal. 2. The Respondent placed reliance on the matter of Otieno Vs. SOO, observing that the appellate court will not disturb the award of the trial court unless it is inordinately so low or so high. The Respondent also pointed out that the trial court rightfully put in consideration the guiding principles on awarding of damages. 3. On who bears the cost of the appeal, the respondent submitted that the successful party should be awarded costs. He argued that they have successfully discussed why the appeal should be dismissed and further state that once it is dismissed, the Plaintiff/ Appellant should be condemned to pay the costs. 4. From the foregoing, this Court notes that the issue of liability was not contested at the appellate level and after analysis of the submissions by both the Appellant and the Respondent, the court shall have the issues for determination as follows; 5. **Issues for Determination** 6. Whether the Trial Adjudicator’s assessment and award of general damages of Kshs. 400,000/- was comparable, adequate and in accordance with the law. 7. Who bears the costs of the Appeal. 8. **Analysis and Determination** 9. **Whether the Trial Adjudicator’s assessment and award of general damages of Kshs. 400,000/- was comparable, adequate and in accordance with the law.** 10. This being a first appeal, this Court is under a duty to re-evaluate, reassess and reanalyze the evidence tendered before the trial court and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. This principle was well stated in Okeno v R. 11. In determining whether the award of damages by the trial court was proper, this Court is guided by the principles set out in **Charles Oriwo Odeyo v Appollo Justus Andabwa** where the Court laid down the guiding principles in assessment of damages as follows: - 12. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained; 13. The award should be commensurate with the injuries sustained; 14. Previous awards are to be taken into account to maintain stability and consistency in awards, though factors such as inflation must also be considered; and 15. The awards should neither be inordinately high nor inordinately low. 16. Guided by the foregoing principles, this Court has carefully re-evaluated the injuries sustained by the Appellant together with the medical evidence and the comparable authorities cited before the trial court. The Appellant sustained a comminuted fracture of the left patella, blunt chest injuries and soft tissue injuries. While the injuries were undoubtedly painful, the evidence on record did not establish permanent incapacity, severe disability or long-term complications that would justify interference with the trial court’s discretion. 17. The trial court properly considered the nature of the injuries, the authorities presented by the parties and the applicable principles in assessment of damages before arriving at the award of Kshs. 400,000/=. In the view of this, the said award was fair, reasonable and commensurate with the injuries sustained and cannot be said to have been inordinately low so as to warrant appellate interference. 18. The Appellant’s appeal principally challenges the award of general damages by the trial court on grounds that the sum of Kshs. 400,000/= was inordinately low considering the injuries sustained and that the learned Adjudicator failed to consider the documentary medical evidence and authorities cited before the court. 19. The law regarding interference with an award of damages by an appellate court is now settled. An Appellate court will only interfere with an award of damages where it is shown that the trial court acted on wrong principles of law, misapprehended the evidence, considered irrelevant factors, failed to consider relevant factors, or where the award is so inordinately high or low as to represent an entirely erroneous estimate. This principle was reiterated in **Butt vs. Khan (1982-1988) KAR 1** where it was held; ***“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low*”** 1. From the record before this Court, the Appellant sustained the following injuries arising from the accident: 1. Comminuted fracture of the left patella bone; 2. Blunt injury to the chest; 3. Soft tissue injuries to the left lower limb; and 4. Multiple bruises and bodily injuries. 2. The Appellant submitted that the learned trial Adjudicator overlooked the comminuted fracture of the left patella and consequently arrived at an inordinately low award. However, upon careful perusal of the judgment and the medical evidence on record, this Court is satisfied that the trial court duly considered the nature of the injuries sustained by the Appellant before arriving at the impugned award. 3. The medical reports produced before the trial court demonstrated that although the Appellant suffered a fracture injury, there was no evidence of permanent incapacity, deformity, or long-term disability occasioned by the injuries sustained. Further, no evidence was tendered to show that the Appellant underwent extensive surgical intervention or suffered complications warranting a substantially higher award. 4. The trial court also properly appreciated the principle that comparable injuries should attract comparable awards while taking into account the prevailing economic circumstances and the passage of time. The award of damages is a matter of judicial discretion and each case must be determined on its own peculiar facts and circumstances. 5. The authorities relied upon by the Appellant before the subordinate court and on appeal involved injuries which, in the view of this Court, were either more severe or accompanied by complications distinguishable from the present case. Consequently, the learned Adjudicator cannot be faulted for declining to award the maximum jurisdictional limit of the Small Claims Court merely because the Appellant had proposed the same. 6. This Court notes that the learned Adjudicator found the Respondent wholly liable and awarded the Appellant Kshs. 400,000/= as general damages after considering the pleadings, medical reports, submissions by counsel, and the applicable legal principles. There is nothing on record to demonstrate that the trial court acted on wrong principles or ignored relevant evidence. 7. In the circumstances, this Court finds that the award of Kshs. 400,000/= was reasonable, comparable, adequate and consistent with awards made for similar injuries by Kenyan courts. The same does not represent an erroneous estimate warranting interference by this appellate court. 8. Consequently, the Appellant has failed to establish sufficient grounds to warrant interference with the discretion exercised by the trial court on assessment of damages. 9. **Who bears the costs of the Appeal.** 10. On the issue of costs, this Court is guided by Section 27 of the Civil Procedure Act which provides that costs are awarded at the discretion of the Court. Although costs ordinarily follow the event, the Court retains unfettered discretion to make such order as to costs as may be just in the circumstances of each case. 11. The present appeal arose from the Appellant’s dissatisfaction with the quantum of damages awarded by the trial court. The appeal did not challenge liability, and the Appellant was exercising his lawful right of appeal seeking enhancement of damages. Further, the Respondent successfully defended the appeal without demonstrating any exceptional prejudice suffered as a result of the proceedings. 12. This Court also takes into account that the dispute emanates from a personal injury claim in which the Appellant sustained bodily injuries. In order to balance the interests of justice and foster fairness between the parties, this Court is of the considered view that an order requiring each party to bear their own costs of the appeal would be appropriate. 13. Consequently, each party shall bear their own costs of this Appeal. **Disposition** 1. Having carefully analyzed and considered the pleadings, the record of appeal, the judgment of the trial court, the submissions filed by both the Appellant and the Respondent, together with the authorities relied upon by the respective parties, this Court finds that the Appeal lacks merit. The Court is satisfied that the learned Adjudicator properly evaluated the evidence placed before the trial court and arrived at a sound and just determination. Consequently, the Court finds no sufficient basis to interfere with the findings and award of the trial court and therefore finds as follows:- * 1. The Appeal is hereby dismissed. 2. The Judgment and Decree of the Honourable S.N. Mutava (Adjudicator) delivered on 27th October, 2025, in Kisumu SCCC No. E234 of 2025 is hereby upheld in its entirety. 3. The award of General Damages in the sum of Kshs. 400,000/= is hereby affirmed. 4. Each party shall bear their own costs of this Appeal. It is so ordered. **Dated, Signed and Delivered at Nakuru High Court on 6th July, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Hon. Justice Abdi M Hassan, OGW**